Report: Political Appointees Vetted DHS Public Records Requests

EFF lawyers Marcia Hoffman and Nate Cardozo celebrate the arrival of two large boxes full of government documents relating to telecom immunity. Photo: hughelectronic/Flickr

Contrary to the Obama administration’s promised commitment to open government, the Department of Homeland Security, in a highly irregular move, filtered hundreds of public records requests through political appointees, allowing them to examine what was being requested and delay releasing sensitive material, according to internal e-mails obtained by the Associated Press.

The political appointees were allowed to vet records requests that were deemed politically sensitive and require career employees to provide them with information about who requested records — for example, where the requester lived and worked, whether the requester was a private citizen or journalist and, in the case of congressional representatives, whether they were Republican or Democrat.

The DHS issued a directive to employees in July 2009 requiring a wide range of public records requests to pass through political appointees for vetting. These included any requests dealing with a “controversial or sensitive subject” or pertaining to meetings involving prominent business leaders and elected officials. Requests from lawmakers, journalists, and activist and watchdog groups were also placed under this scrutiny.

The reviewers included Homeland Secretary Janet Napolitano’s top staff members, including her deputy chief of staff, senior department lawyer and deputy director of scheduling.

Although the vetting did not prevent information that should have been released from getting released, the AP noted, it did cause numerous delays — sometimes lasting weeks — in releasing records to Congress, watchdog groups and reporters. The delays led some department officials to worry about potential lawsuits, according to one internal e-mail the AP obtained.

“All this article points out is that senior leadership had visibility into FOIA releases to enable the department to be as responsive as possible to requests from the press and other stakeholders, especially as it pertained to documents generated during the previous administration,” DHS spokeswoman Amy Kudwa told Threat Level in an e-mail statement. She noted that the department, under the Obama administration, had reduced a FOIA backlog inherited from the Bush administration from 74,879 requests at the end of fiscal year 2008 to just 12,406 requests as of this January and had also reduced the typical processing time for requests.

The practice began just six months after President Obama vowed in a speech to reform the way the government responded to public-records requests in order to make more records available to the public and make them available more swiftly.

In January 2009 during a staff swearing-in ceremony, Obama cited the Freedom of Information Act, or FOIA, as one of the most important tools of oversight the nation possesses and called on all government agencies to lean toward transparency. Obama asserted that no one should ever withhold information out of political expediency or simply because it might expose embarrassing information about departments or officials.

“For a long time now, there’s been too much secrecy in this city,” he said.

Under the FOIA, the government is required to release requested records unless they would harm national security, violate privacy rights protected by statute or conflict with specific exemptions enacted by Congress.

The e-mails obtained by the AP, however, reveal that political appointees were less interested in vetting record requests for these reasons than for determining — based on the kinds of requests coming in — what areas of the government might be under scrutiny. Knowing what records journalists were requesting might help the administration prepare a response in anticipation of a news story. For example, the e-mails show concern about making sure the department didn’t release information about Obama’s father without first coordinating with the White House.

The practice created ill-will among career employees who resented the interference of political appointees and were often unclear what information was supposed to be passed by the appointees for review, according to the news report.

In its defense, the DHS said that fewer than 500 FOIA requests, out of more than 100,000 submitted during the last fiscal year, were diverted to political appointees for scrutiny. The department reportedly halted the practice earlier this month at the same time it handed over its internal e-mails to the AP. The Office of Inspector General is now looking into the matter to determine if there is any evidence of wrongdoing, according to the news service. The White House says it was not involved in creating the DHS directive.

A new policy replacing the directive says that records can now be released without the approval of Napolitano’s political advisers but must at least be submitted to them three days before the records are released to the requester.